USCA4 Appeal: 24-1614 Doc: 52 Filed: 06/02/2025 Pg: 1 of 17
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-1571
GARTEN TRUCKING LC,
Petitioner, and
ASSOCIATION OF WESTERN PULP AND PAPER WORKERS,
Intervenor,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 24-1614
Petitioner,
Respondent. USCA4 Appeal: 24-1614 Doc: 52 Filed: 06/02/2025 Pg: 2 of 17
On Petition for Review of an Order of the National Labor Relations Board. (10−CA−304929)
Argued: March 20, 2025 Decided: June 2, 2025
Before WILKINSON, GREGORY, and QUATTLEBAUM, Circuit Judges.
Petition denied, and cross-petition for enforcement granted, by published opinion. Judge Wilkinson wrote the opinion in which Judge Gregory and Judge Quattlebaum joined.
ARGUED: King Fitchett Tower, WOODS ROGERS VANDEVENTER BLACK PLC, Roanoke, Virginia, for Petitioner/Cross-Respondent. Gregory P. Lauro, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. ON BRIEF: Agnis C. Chakravorty, WOODS ROGERS VANDEVENTER BLACK PLC, Roanoke, Virginia, for Petitioner/Cross-Respondent. Jennifer A. Abruzzo, General Counsel, Jessica Rutter, Deputy General Counsel, Peter Sung Ohr, Associate General Counsel, Ruth E. Burdick, Deputy Associate General Counsel, Kira Dellinger Vol, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. David A. Rosenfeld, WEINBERG, ROGER & ROSENFELD, Emeryville, California, for Intervenor.
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WILKINSON, Circuit Judge:
The petitioner challenges a decision made by the National Labor Relations Board
(“NLRB” or “Board”) that his rough response to a union flyer constituted an unfair labor
practice. The NLRB found that because the petitioner’s message purported to tie wage
increases to employees’ union activities, it was a coercive threat of reprisal. As such, the
speech violated the National Labor Relations Act (“NLRA”) and was not protected under
either the Act or the First Amendment. Because we find that the NLRB had substantial
evidence to reach this conclusion with respect to one sentence of the petitioner’s post which
recast his communication in a coercive light, we now uphold the Board’s decision. In doing
so, however, we distinguish between this one coercive sentence and the remainder of the
petitioner’s message. Indeed, we emphasize that employers are constitutionally and
statutorily entitled to give their noncoercive opinion on union activities, especially in the
midst of organizing campaigns, and that such unfettered exchange advances the democratic
values of our nation’s labor systems.
I.
A.
Petitioner Robert “Dizzy” Garten (“Garten”) owns and operates Garten Trucking
LC (“Garten Trucking”), a company in Covington, Virginia specializing in the
transportation of paper products and other such goods. In early June 2021, two Garten
Trucking employees coordinated with Intervenor Association of Western Pulp and Paper
Workers (“Union” or “AWPPW”) to begin an organizing campaign to unionize
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approximately 109 workers at Garten Trucking’s facilities. A union representation election
was held between August 4-6, 2021, and AWPPW lost the election by a vote of 65-30. See
J.A. 107; Garten Trucking, LLC, Nos. 10-CA-279843 et al., 2023 WL 2070300, slip op. at
1 (N.L.R.B. Div. of Judges). However, rather than spelling the end of the Union’s efforts,
the election loss led to a series of bitter and lengthy disputes over Garten Trucking’s labor
practices. This case thus comes before us amidst a continued organizing push, with both
sides deeply entrenched in their positions and desirous of securing the favor of employees.
Indeed, after its election loss, AWPPW filed a bevy of unfair labor practice charges,
contending that these violations fatally tainted the election results. The charges were
consolidated and heard before an Administrative Law Judge (“ALJ”). On February 17,
2023, the ALJ issued its findings of fact and conclusions of law, determining that Garten
Trucking had engaged in various behaviors violative of Section 8(a)(1) of the NLRA,
including (1) unlawfully interrogating employees, (2) creating an impression that “union
activities were under surveillance,” (3) making various “threat[s] to close its business and
threatening employees with job loss if they chose the Union as their bargaining
representative, as well as informing employees it would be futile for them to select the
Union as their bargaining representative,” and (4) “telling employees that it disciplined
them for their union activity.” Garten Trucking, 2023 WL 2070300, slip op. at 44-45. The
ALJ ordered that the election results be set aside and that a new election be held. Id. slip
op. at 2. Garten Trucking subsequently filed exceptions with the NLRB. While none of
these actions are at issue here, they provide relevant context for deciphering the effect of
the communications we now review.
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On September 17, 2023, the NLRB affirmed the ALJ’s findings of facts and
conclusions of law but amended the remedy to order mandatory bargaining with AWPPW
because a “majority of [Garten Trucking’s] employees supported the Union before [the
company] engaged in unfair labor practices.” Garten Trucking LC, 373 N.L.R.B. No. 94,
2024 WL 4229704, at *3-4 & n.4.
B.
While the Union’s initial case was pending before the ALJ and NLRB, it continued
its organizing efforts. These activities included the dissemination of a flyer on September
19, 2022, asserting that Garten Trucking was required to bargain with the AWPPW and
that the Union’s “presence creates raises for [the company’s] employees”:
Have you received a pay increase? If so, how much of a pay increase have you received since the AWPPW has helped you start a union campaign?
Garten Trucking is currently picking and choosing who they are giving pay increases to.
It is illegal for Garten Trucking to give raises without bargaining with the AWPPW and the AWPPW will not bargain without your input and your voice.
As a member of the AWPPW, everybody gets raises! We want raises for every employee, not just a select few.
When the AWPPW begins bargaining percentage raises for everybody, your wages will be larger because the union was here fighting for you.
The court case has now been completed. All sides now have (35) days to get their legal briefs to the presiding judge. After this period, the judge will then deliberate and make a final decision.
J.A. 94 (emphasis omitted).
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Later in the evening on September 29, 2022, Garten posted a response to the flier
on the company’s internal message board available to all employees. Garten’s message
contested that the Union was responsible for any pecuniary benefit Garten’s employees
had previously received. In its entirety, the post read:
I have been honest with everyone since day 1 and have done everything I can do to try and help all the employees in every area of GT, GT2, Big Island, and the warehouses, and I want you to be the first to know that everything that is in that letter that those worthless pieces of trash put in that paper they handed out is pure horseshit. For them to say they have anything to do with a raise for you all is nothing but a lie. They don’t even get to talk to anyone at the mill. I can’t speak for everyone, but I can say with 100% confidence that I would never let 2 idiots like [Union organizers] Jeff Baker and Miles whatever his name is be in charge of your families [sic] income. I would resign first. As a matter of fact if it wasn’t for them trying to steal money out of your paychecks you would already have your raises.
J.A. 96. Five employees reacted to the message with a thumbs-up emoji, and two
employees replied with positive comments. J.A. 98-100.
On October 11, 2022, the Union filed an unfair labor practice charge with the
NLRB, claiming that Garten’s post constituted a new unfair labor practice under Section
8(a)(1). J.A. 90. The NLRB’s general counsel subsequently issued a complaint, and a
hearing was held before an ALJ on October 17, 2023. J.A. 5, 78. On December 7, 2023,
the ALJ ruled against Garten Trucking, concluding that Garten violated Section 8(a)(1) by
suggesting that employees “would have already received a raise if it were not for their
union activities.” J.A. 111.
Garten Trucking objected to the ALJ’s decision and sought review by the NLRB.
J.A. 119-20. On May 24, 2024, the NLRB issued a decision adopting the ALJ’s
conclusions. J.A. 151. Garten Trucking subsequently petitioned this court for review.
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II.
This court reviews the NLRB’s factual findings and application of undisputed law
to facts under a substantial-evidence standard. See Intertape Polymer Corp. v. NLRB, 801
F.3d 224, 230 (4th Cir. 2015). Substantial evidence is that which “a reasonable mind might
accept as adequate to support a conclusion.” Tecnocap, LLC v. NLRB, 1 F.4th 304, 313
(4th Cir. 2021) (quoting NLRB v. Air Contact Transp. Inc., 403 F.3d 206, 210 (4th Cir.
2005)). We note, however, that the interpretation of a statute like the NLRA is “exclusively
a judicial function,” and afford the NLRB’s interpretation deference only to the extent that
the agency’s opinion has the “power to persuade.” Loper Bright, 603 U.S. at 387-88, 393
n.4 (first quoting United States v. Am. Trucking Ass’ns, 310 U.S. 534, 544 (1940); then
quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)); see Rieth-Riley Constr. Co.
v. NLRB, 114 F.4th 519, 528 (6th Cir. 2024).
This case implicates the relationship between two subsections of the NLRA:
Sections 8(a)(1) and Section 8(c). Section 8(a)(1) broadly prohibits employers from
“interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights
guaranteed in [Section 7 of the NLRA].” 29 U.S.C. § 158(a)(1); see id. § 157 (providing
various rights to self-organization, collective bargaining, and other union activities). “It is
axiomatic that the rights enshrined in the [NLRA] do not evaporate after [a union]
election.” Abbey’s Transp. Servs., Inc. v. NLRB, 837 F.2d 575, 579 (2d Cir. 1988). Section
8(c) clarifies, however, that
[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the
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provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.
29 U.S.C. § 158(c).
We do not deal here exclusively with the statutory guardrails of employer speech.
Indeed, the union-election context of this case implicates broader First Amendment
principles protective of campaign speech. It is true that labor elections and the elections of
public officials do not map onto one another perfectly. See NLRB v. Gissell Packing Co.,
395 U.S. 575, 617-18 (1969). Union elections take place in closed environments where one
party has significant economic control over the electorate. They are governed by separate
rules and regulations, chief among them the NLRA. However, union elections and public-
official elections both enable democratic governance. Whether an election be for union
representation, school board officials, state representatives, or U.S. Senators, voters are
selecting a proxy to advocate on their behalf. The First Amendment principles special to
elections thus serve as an informative guidepost for our interpretation of Section 8(c)
despite the idiosyncrasies of union elections. We therefore begin with a brief overview of
those principles.
The First Amendment exists in large part to protect political speech and preserve
the sanctity of public discourse. Indeed, the Amendment emerged out of an environment
where independence was won and the Constitution crafted through vigorous campaigning.
It was an era of pamphleteering, sermons, and speeches, where many men could pick up a
pen and join the discordant choir of Revolutionary politics. See BERNARD BAILYN,
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IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 5 (1967) (“Any number of people
could join in such proliferating polemics, and rebuttals could come from all sides.”).
The First Amendment preserves this ethos, especially in times of election. See
McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 203 (2014). Laws and policies must
be forged in the fires of widespread public debate, their value tested by rounds of criticism
and refutation. To be anything but illusory, public discourse must embrace a robust free
market of ideas. See ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-
GOVERNMENT 22-23 (1948). The electorate relies on this “unfettered interchange of ideas”
in order to make informed decisions regarding “political and social changes.” Buckley v.
Valeo, 424 U.S. 1, 14 (1976) (per curiam) (quoting Roth v. United States, 354 U.S. 476,
484 (1957)). And because these choices can have such strong impacts on the electorate, the
First Amendment’s protection of free speech “has its fullest and most urgent application
precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401
U.S. 265, 272 (1971); see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346-47
(1995). We thus always “err on the side of protecting political speech rather than
suppressing it.” Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 457 (2007).
In the context of campaigns, our reading of the First Amendment is capacious; we
are generally skeptical of a “‘highly paternalistic approach’ limiting what people may
hear.” Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Va.
State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976)).
And this skepticism has only grown in light of the Supreme Court’s repeated repudiation
of laws limiting campaign speech or donations by specific actors. See, e.g., Citizens United
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v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010); McCutcheon, 572 U.S. at 191. “The
First Amendment . . . ‘presupposes that right conclusions are more likely to be gathered
out of a multitude of tongues, than through any kind of authoritative selection.’” N.Y. Times
Co. v. Sullivan, 376 U.S. 254, 270 (1964) (quoting United States v. Associated Press, 52
F. Supp. 362, 372 (S.D.N.Y. 1943) (Learned Hand, J.)).
Throughout our history, courts have reiterated that neither Congress nor the states
may elevate the voice of some speakers over others. See Ariz. Free Enter. Club v. Bennett,
564 U.S. 721, 741 (2011); McCutcheon, 572 U.S. at 191. The Supreme Court in Citizens
United raised the concern that “[s]peech restrictions based on the identity of the speaker
are all too often simply a means to control content.” 558 U.S. at 340. And in campaign
environments where two parties predominate, restricting one side’s ability to openly
communicate inhibits that side from “establish[ing] worth, standing, and respect for [its]
voice.” Id. at 340-41. Thus, identifying “preferred speakers” may not only foster viewpoint
discrimination, but also “reduces the quantity of expression by restricting the number of
issues discussed, the depth of their exploration, and the size of the audience reached.” Id.
at 340 (quoting Buckley, 424 U.S. at 19).
The above discussion is necessarily abbreviated; it cannot capture the nuance of
centuries of First Amendment campaign-speech doctrine. Suffice it to say that the breadth
of First Amendment protections of campaign speech does not, of course, preclude all
attempts at regulation. Indeed, to preserve the informative value of political debate, the
government has often instituted valid anticorruption measures on top of traditional libel
laws. See MEIKLEJOHN, supra, at 22 (discussing how political debate sometimes requires
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a metaphorical “chairman or moderator”). The paradigmatic campaign-speech regulations
held to be constitutional are those targeting “quid pro quo corruption.” McCutcheon, 572
U.S. at 192, 209 (citing Wis. Right to Life, 551 U.S. at 457). In these scenarios, the speaker
is not using speech to persuade action, but rather as a means of compelling action from a
voter or candidate through reward, coercion, blackmail, bribery, or other corrupt methods.
The sanctity of free choice is tainted by coercive speech, such that the electorate is not
making a decision based on a candidate or policy’s inherent virtues.
In these narrow cases, government intervention may be appropriate. However, such
interference should be reserved for extraordinary occasions. There is often a fine line
between a quid pro quo and a common campaign promise, but “the distinction must be
respected in order to safeguard basic First Amendment rights.” McCutcheon, 572 U.S. at
209. A claim that a law is “enhancing the ability of its citizenry to make wise decisions by
restricting the flow of information to them must be viewed with some skepticism.” Eu, 489
U.S. at 228 (quoting Tashjian v. Republican Party of Conn., 479 U.S. 208, 221 (1986)).
And “no test of reasonableness” will save a law that effectively “urge[s] people to vote one
way or another in a publicly held election.” Mills v. Alabama, 384 U.S. 214, 220 (1966).
The NLRA embodies and “implements” these First Amendment principles.
Chamber of Com. of U.S. v. Brown, 554 U.S. 60, 67 (2008) (quoting Gissel, 395 U.S. at
617). Congress was clear that Section 8(c) sought to expand the range of permissible
employer speech during union campaigns, and that the provision should not be read
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narrowly. Prior to the addition of Section 8(c) in 1947, the NLRB mandated “complete
employer neutrality” during labor organizing efforts, and it largely ignored Supreme Court
dictates to respect employers’ speech. Id. at 66-67; H. REP. NO. 245, at 8 (1947) (“Although
the old Labor Board protests it does not limit free speech, it is apparent from decisions of
the Board itself that what persons say in the exercise of their right of free speech has been
used against them.”).
As part of the Taft-Hartley Act, Congress sought to restore balance between
employees and employers, guaranteeing to both “the full exercise of the right of free
speech.” H. REP. NO. 245, at 6; 93 CONG. REC. 3424 (Apr. 15, 1947) (statement of Rep.
Hartley). And, indeed, the Act’s sponsors were clear that the final language adopted was
arguably the strongest option for employer speech proposed. See 93 CONG REC. 6445 (June
5, 1947) (statement of Senator Taft); id. at 6443-44.
In passing the Taft-Hartley Act, Congress relied upon the same concerns for public
discourse and an informed voting base that our Founders and the Court invoked in
protecting campaign speech generally. See Linn v. United Plant Guard Workers of Am.,
383 U.S. 53, 62 (1966) (discussing how the Taft-Hartley Act was based upon a
“congressional intent to encourage free debate on issues dividing labor and management”).
Open dialogue between employers, employees, and unions “nurtures a healthy and stable
bargaining process.” Americare Pine Lodge Nursing & Rehab. Ctr. v. NLRB, 164 F.3d 867,
875 (4th Cir. 1999); accord. Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers
v. Austin, 418 U.S. 264, 273 (1974) (“[F]ederal policies favor[] uninhibited, robust, and
wide-open debate in labor disputes . . . .”).
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As with campaign speech, Congress distinguished between purely persuasive
speech and speech designed to effectuate an explicit or implicit threat or agreement for a
course of action—a quid pro quo. See Americare, 164 F.3d at 875. Section 8(c) makes only
the latter impermissible. Employers’ speech cannot exact penalty or tender reward for
union activity or lack thereof. But employers are given the opportunity to persuade
employees of the merits of forswearing unionization without resort to strongarmed
measures. Indeed, “‘[f]ree trade in ideas’ means free trade in the opportunity to persuade
to action, not merely to describe facts.” NAACP v. Claiborne Hardware Co., 458 U.S. 886,
910 (1982) (quoting Thomas v. Collins, 323 U.S. 516, 537 (1945)).
III.
In order to uphold the NLRB’s determination, we must find that some part of
Garten’s message interfered with employees’ exercise of their labor rights in violation of
Section 8(a)(1). In turn, under Section 8(c), any part of the message is only admissible as
evidence of an unfair labor practice if it constitutes a “threat of reprisal or force or promise
of benefit.” 29 U.S.C. § 158(c). These two sections point effectively toward the same
question: was the message objectively coercive?
Garten posted a long response to the Union’s flyer. Much of Garten’s response was
coarse; little of it was decorous. But its brusque and combative tone was still within the
bounds of acceptability. For us to conclude otherwise would ignore Section 8(c) and make
speech during a union organizing campaign a one-sided affair.
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There is a fundamental difference between speech imposing an improper quid pro
quo and speech which merely attempts to persuade on the merits, leaving employees free
to vote without penalty or reward dangling over their heads. The very nature of democratic
governance in labor systems requires that “[e]mployers [] be free to communicate their
positions.” Americare, 164 F.3d at 876. Garten is entitled to share his concerns regarding
the costs of unionization. This is a form of “legitimate propaganda.” Pirelli Cable Corp. v.
NLRB, 141 F.3d 503, 516 (4th Cir. 1998) (quoting Be-Lo Stores v. NLRB, 126 F.3d 268,
286 (4th Cir. 1997)). He is also permitted to respond to the criticism that the Union levied
against him. Campaign environments require the ability of parties to “adequate[ly] reply to
these charges”—otherwise the First Amendment is “wholly ineffective in protecting the
electorate from confusive last-minute charges and countercharges.” Mills, 384 U.S. at 220
(internal quotation marks omitted).
The majority of Garten’s message served lawful purposes; he rebutted the facts of
AWPPW involvement in determining raises and evinced his belief that employees are
better off without the Union. This is a valid position to take, one which employees are
entitled to hear, and one which gives them worthwhile and useful information on which to
base their votes. Only in including the final sentence did Garten venture into impermissible
territory harmful to free debate.
The caustic nature of Garten’s speech thus does nothing to change our analysis.
Campaigns often resemble a barroom brawl more than they do a poised, prim-and-proper
duel. Since the very beginning of our nation, candidates and their supporters have not shied
from visceral exhortations. See, e.g., Rev. Timothy Dwight, President of Yale Univ., The
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Duty of Americans, at the Present Crisis, (July 4, 1798) (suggesting that support for
Jeffersonian Republicans would “change our holy worship into a dance of Jacobin phrenzy,
and . . . [place] a strumpet personating a goddess on the altars of Jehovah . . . that we may
see our wives and daughters the victims of legal prostitution; soberly dishonoured;
speciously polluted; the outcasts of delicacy and virtue, and the lothing of God and man”).
The most spirited of modern charges thus have unrestrained ancestral roots. And
“[f]reedom of discussion, if it would fulfill its historic function in this nation, must embrace
all issues about which information is needed or appropriate to enable the members of
society to cope with the exigencies of their period.” Thornhill v. Alabama, 310 U.S. 88,
102 (1940). To silence one party is to steal from voters the liberty of actual choice. Perhaps
unionization is the right decision, perhaps not. That is a question not for the courts, but for
employees, and employees require access to a full range of information and positions, from
union advocates to be sure, but also from their employers.
IV.
The last sentence of Garten’s post, however, tells a different story: “As a matter of
fact if it wasn’t for [AWPPW] trying to steal money out of your paychecks you would
already have your raises.” J.A. 96. This statement could be interpreted in one of two ways:
(1) as a general matter, employees would fare better if they were not unionized, and (2) as
a real threat not to grant future wages if there was a union presence. If the sentence fell
exclusively within the first category, the NLRA would not be implicated. “[A]n employer
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has the right to ‘make a prediction as to the precise effects he believes unionization will
have on his company.’” Be-Lo Stores, 126 F.3d at 285 (quoting Gissel, 395 U.S. at 618).
Thus, our analysis focuses on whether the statement, under the “totality of the
circumstances,” could objectively be perceived as a threat. Intertape Polymer Corp., 801
F.3d at 230 (quoting NLRB v. Nueva Eng’g, Inc., 761 F.2d 961, 965 (4th Cir. 1985)). Under
this standard, it becomes clear that the NLRB had substantial evidence to conclude that
Garten crossed the line. While he contends that the sentence can only logically be
interpreted as hyperbole or opinion because he had already doled out raises, see Opening
Br. at 5, 14, Garten’s prior actions are inapposite. Wage increases were not on a regular
schedule and were not then subject to collective bargaining. As the company’s owner,
Garten’s discretion was substantial, if not plenary; he could easily withhold future wages
on a whim, and his employees would readily know this. In textually linking employees’
raises to the activities of the Union, Garten improperly implied that union efforts had
previously impacted wages and that future organizing activity would have the same
negative effect. This was not a general statement that unionizing is bad for business. See,
e.g., Pirelli, 141 F.3d at 516; Be-Lo Stores, 126 F.3d at 285-86. Rather, the NLRB
presented substantial evidence that this is the paradigmatic quid pro quo that neither the
NLRA nor traditional campaign-speech doctrine protects: the evidence showed that
Garten’s speech attempted to secure a particular course of employee action not by mere
persuasion, but by intimidation and coercion.
Furthermore, given Garten’s level of control over the business, it is unsurprising
that some employees responded positively to his message. Indeed, feeling compelled to
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placate economic decision-makers is what the NLRA seeks to avoid. Thus, the Board could
permissibly view the employees’ responses as false positives, a symptom of unfair labor
practices rather than a genuine sign that the message was not coercive.
For the foregoing reasons, we hold that the NLRB had substantial evidence to find
a Section 8(a)(1) violation on these facts. Accordingly, we deny the petition and grant the
Board’s cross-petition for enforcement.
PETITION DENIED AND CROSS-PETITION FOR ENFORCEMENT GRANTED